Public Bill Committee

[Sir Nicholas Winterton in the Chair]

Written evidence to be reported to the House for publication

JS(NI)1 Northern Ireland Human Rights Commission

Nicholas Winterton: Before I ask the hon. Member for North Down to resume her valuable contribution to this important debate, may I confirm that the Committee has now received evidence on the Bill in a document called JS(NI)1, which is a Committee-stage briefing from the Northern Ireland Human Rights Commission relating to clauses 13 to 19? A copy of this document is available in the room and I hope that all hon. Members will look at this evidence.

Clause 1

Issue of certificate

Amendment proposed [this day]: No. 24, in clause 1, page 1, line 5, leave out ‘may’ and insert ‘shall’.—[Lady Hermon.]

Question again proposed, That the amendment be made.

Nicholas Winterton: I remind the Committee that with this we are discussing the following amendments: No. 3, in clause 1, page 1, line 8, leave out ‘he suspects’ and insert
‘believes, on the balance of probabilities,’.
No. 4, in clause 1, page 1, line 9, leave out ‘risk’ and insert ‘real and present danger’.
No. 5, in clause 1, page 1, line 9, leave out ‘administration’ and insert ‘interests’.
No. 6, in clause 1, page 1, line 10, leave out ‘might’ and insert ‘would’.

Lady Hermon: Thank you, Sir Nicholas. It was nice of you to describe my contribution as valuable to this Committee, particularly since I was disagreeing, saying, “No, no and no again” to the Minister’s typically persuasive and eloquent argument. The Committee will not be persuaded by his eloquence on this occasion, however, because it is inconceivable that it could recognise that the conditions outlined in clause 1 would be met to the satisfaction of the Director of Public Prosecutions and that he would also be satisfied that, because of those conditions, there is a risk that the administration of justice might be impaired. The Minister is trying to persuade us that, even though he cannot conceive of any instance in which the DPP would not issue a certificate, he is still not convinced that he should change the DPP’s discretion, which is indicated by the use of the word “may” in clause 1(2), into a duty.
The Minister eloquently reminded us in this morning’s sitting that we really have nothing to worry about, because if there is any danger at all of jury tampering, it will be picked up under the Criminal Justice Act 2003. The Act gained Royal Assent four years ago and I think that he hinted that section 44 is its key provision, but that came into force only today or this week.

Paul Goggins: I am happy to confirm that it came into force on 8 January.

Lady Hermon: It came into force on 8 January, so that is the time that it has taken the Government, in conjunction with the other relevant justice agencies, to put the 2003 Act into operation even though there is the real and present threat of jury tampering.
Let us look for a moment at what the Minister is trying to persuade us of. Section 44 of the 2003 Act came into force just a few days ago and has very limited scope. The Minister, who sits there with an angelic look on his face, knows well that that is so. It will apply only when the prosecutor makes an application to the Crown court judge, who must be satisfied about two conditions that are set out in section 44. It states:
“The first condition is that there is evidence of a real and present danger that jury tampering would take place ... The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood”
is such that there would be a substantial threat to the interests of justice in the trial if it were conducted with a jury.
Section 44 applies only to jury tampering. The tests that have to be satisfied are set at a high level. The provision will be available only in limited circumstances. However, the Minister has identified the two parts of clause 1 that must be satisfied and the first is that the DPP must find at least one of the conditions outlined in the clause. It is a side issue, but the DPP might be a man or a woman as we would anticipate that in future all aspects of the judicial system would reflect gender and ethnicity in Northern Ireland. For the Committee’s information, there are 10 High Court judges in Northern Ireland, and not one is female. The positions of Lord Chief Justice and the Director of Public Prosecutions have never been held by a woman, but that is a side issue.
The key issue is that the DPP is satisfied that there is a risk that the administration of justice might be impaired. In those circumstances, it is completely illogical that the DPP, he or she, should turn a blind eye to that significant fact and not make a certificate that there should be a non-jury trial.
The Minister, by being terribly persuasive about the virtues of the Criminal Justice Act 2003, is wrong in giving the impression that there is a seamless system that will pick up, at the trial stage under the 2003 Act, those cases in which the DPP has concluded that there is a risk to the administration of justice. They will not be picked up under the 2003 Act because it sets a very high standard for the judge to come to that conclusion when the trial has begun.
The definition of risk to the administration of justice goes much wider than simply jury tapping, which is the only issue covered by section 44 of the 2003 Act. In those circumstances, it is consistent with the Minister’s own arguments that he cannot conceive of an instance when the DPP would not issue a certificate but the Minister is still not prepared to make it a duty rather than a discretion.
I would be intrigued if the Minister would intervene to give the Committee and the Chairman some examples. I know that Sir Nicholas follows our debates with great interest and passion as he chaired in his characteristically fair and kindly manner in difficult circumstances our ghastly sittings on the proposed measure in respect of on-the-run terrorists not coming before a court.
I hope that the Minister will intervene to give examples of cases in which the DPP would exercise discretion when he knows that there is a risk to the administration of justice. Why in heaven’s name not make that a duty? The Minister said that he did not want to be rigid and inflexible, but I cannot be convinced that he believes, in his heart of hearts, that it is right that the DPP should turn a blind eye to a risk to the administration of justice.

Paul Goggins: I say, in passing, that although it is a long time since the Criminal Justice Act 2003 was passed, the hon. Lady, with her experience, will appreciate that careful preparations with the appropriate training are needed for the introduction of such important powers.
I rise not to give the hon. Lady examples but to repeat what I said earlier: I do not have any examples to give. I cannot foresee any circumstances in which the certificate would not be issued when both limbs of the test are satisfied. I say again that there may be unforeseen circumstances, which I cannot predict, that may require some discretion by the DPP, but fundamentally it is a point of principle. In the end, it is for the DPP to make that decision and we leave it to him, as it is at present, to use his discretion to make that judgment. I see no circumstances in which that would happen, but we have to leave it open to the DPP.

Lady Hermon: I am grateful to the Minister for that intervention, which I invited, because he confirmed, as we believed, that there are no circumstances that he can at present envisage in which the DPP would not issue a certificate. We are trying to clarifying the legislation so that it builds confidence. I entirely share the Minister’s view that trying to get the balance right is a matter of caution—he used that word—and that may build some confidence in the criminal justice system among victims. We are talking about victims and their protection.
 I see that the hon. Member for East Antrim is here on time, and very nice it is to see that. His nickname is “The late Member”. Both the hon. Gentleman and I have taken evidence in private and heard that there is real fear among the victims of organised crime, paramilitary and ex-paramilitary crime, and intimidation. We should err on the side of the victim to build confidence in the criminal justice system in Northern Ireland. That means making it absolutely clear that when the DPP recognises that there is a threat to the administration of justice in Northern Ireland, and that one of the conditions set out in clause 1 is satisfied, he will do the right thing by the victim and the criminal justice system and issue a certificate. That cannot be done under the Criminal Justice Act 2003, save in very limited circumstances.

Mark Durkan: Just as the Minister did not give examples, the hon. Lady did not. There might be cases that cause concern about the supposed discretion contained in the measures. Obviously, I oppose clause 1 for the same reason that I do not want any provision for non-jury courts beyond that contained in the 2003 Act. Is part of her concern about the DPP having discretion that, under devolution, he may be influenced by a devolved Minister or a Committee of the Assembly as to how he uses that discretion?

Lady Hermon: I am grateful to the hon. Gentleman for that contribution. However, I am not concerned about who might or might not be a future Justice Minister in Northern Ireland when policing and justice are devolved. I hope that the Government bear in mind the words spoken in the Chamber and the assurances that policing and justice would be devolved to the Assembly only when there is public confidence in the criminal justice system.

Peter Bone: We were asked for examples of when the provisions may cause a problem. Whether or not the DPP exercises a discretion to go to trial without jury, defence lawyers would always approach him asking for the decision to be reversed.

Lady Hermon: Again, I am very grateful to the hon. Gentleman for his helpful intervention, but I will respond first to the intervention of the hon. Member for Foyle.
 My concern has been propelled by the fact that the Government—quite rightly—established the Independent Monitoring Commission, and sometimes it would be good if we paid more attention to the commission’s reports. I was affected by a paragraph 5.5 in its third report, published as long ago as November 2004. That paragraph highlights the staggering influence of criminal gangs in Northern Ireland and states:
“The Northern Ireland Organised Crime Task Force has stated that there are some 230 organised criminal gangs believed to be operating in Northern Ireland. We have been advised that about 60 per cent. or some 140 have paramilitary links and that, of the top 25 criminal gangs involved in international activities operating in early 2004, 17, some two-thirds, had paramilitary associations.”
This is the key phrase:
“Seldom in the developed world has this high proportion of the most serious criminals been associated with groups originating in terrorism, with an organised structure and discipline, and the experience of planning, learning and conducting sophisticated clandestine operations, methods of handling money, and with traditions of extreme violence.”
 Northern Ireland has a population of about 1.7 million people. It is a small jurisdiction. I have not dreamed up the following facts and figures, and the Ulster Unionist party did not produce them. We have no time for that—we have time for so little. The Independent Monitoring Commission produced the report, highlighting that there are 230 organised criminal gangs in Northern Ireland, and that a vast percentage of them have international connections. They are very sophisticated and quite ruthless. On ruthless and sophisticated criminality, it is perfectly logical and legitimate for the Government to say to the people of Northern Ireland that when they are victims of paramilitary intimidation or of organised criminal gangs, the criminal justice system will be on the people’s side.
The Bill states that the DPP must be
“satisfied that ... there is a risk that the administration of justice might be impaired”.
When the DPP is satisfied and one of the conditions is met, he should exercise a duty to issue a certificate that sends the trial to a non-jury court. It could not be simpler or more logical, and rather than exercise discretion, it would be the right thing to do in the circumstances. I rest my case. I am simply not persuaded by the Government’s very eloquent and very nice arguments, and their approach would just be the wrong thing to do in the circumstances.

Nicholas Winterton: It is only fair to tell the Committee that the amendments grouped with the lead amendment are totally opposed to it. If the Liberal Democrats want to press one of their amendments to a Division, I should be happy to permit it.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 15.

Question accordingly negatived.

Lembit Öpik: On a point of order, Sir Nicholas. I am grateful for your offer of a vote, but since the Minister has said that he will consider at least one of the amendments, we do not feel it necessary to push any of them at this stage. We may return to them on Report.

Nicholas Winterton: I am sure that the Committee and the Minister are grateful for that explanation from the hon. Gentleman.

Lady Hermon: I beg to move amendment No. 25, in clause 1, page 2, line 19, leave out paragraph (b).
The amendment relates to a curious part of the clause. Although we were defeated on the last amendment, we have not given up on our efforts to improve the Bill. We are here jointly, no matter which party we represent, to make sure that this is a good Bill for the people of Northern Ireland.
The construction of the clause is interesting. Subsection (9) includes a definition of a proscribed organisation. As we know from our earlier discussions, the DPP has to be satisfied of two things, including one of the four conditions outlined in the clause. The first three conditions make reference to the defendant’s connection to a proscribed organisation. Condition 1 is that the defendant is a member or past member of a proscribed organisation. Condition 2 is that the offence was committed on behalf of a proscribed organisation. Condition 3 is that an attempt has been made on behalf of a proscribed organisation to prejudice the investigation or prosecution. Interestingly, the fourth condition makes no reference to a proscribed organisation. It concerns
“a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons.”
I have tabled the amendment to give the Minister an opportunity to explain the construction of the clause and why one of the four conditions, the last of which makes no reference to a proscribed organisation, must be satisfied, along with the condition that the DPP must be satisfied that there is a risk to the administration of justice. Will the Minister give examples of circumstances in which he thinks there will be a non-jury trial, not under the 2003 Act but under this Bill, where there is no connection with a proscribed organisation?
The amendment relates specifically to the deletion of subsection (9)(b), which defines a proscribed organisation. Hon. Members will be familiar with the definition in the Terrorism Act 2000. Having taken advantage of modern technology, I have a lengthy, up-to-date list of the all the organisations proscribed under the Act. I will not name them all; al-Qaeda is obviously on the list, but some of them have extremely odd titles. I am sure that the Minister is familiar with them—for example, the 17 November Revolutionary Organisation is listed. At the end of the list are the proscribed Irish groups, which include the Continuity Army Council, the Orange Volunteers, the Red Hand Commando, the Red Hand Defenders, the Ulster Defence Association, the Ulster Freedom Fighters and the Ulster Volunteer Force, to name but a few.
I would like the Minister to explain the reason for subsection 9(b), which curiously adds the condition that, in addition to the defendant being a member or a past member of a proscribed organisation under the definition in the 2000 Act, the organisation’s
“activities are (or were at the time of his membership) connected with the affairs of Northern Ireland”.
Let me give an example, which the Minister can address in his response.
If an organisation that falls within the definition of a proscribed organisation were to be responsible for a major bank robbery—I shall not mention the Northern bank, which has already been the subject of many jokes—would it be sufficient that the bank was in Northern Ireland? Would that be sufficient to meet the test in clause 1(9)(b), under which the activities of the organisation are
“connected with the affairs of Northern Ireland”?
 What does it mean to be connected with the affairs of Northern Ireland? Would a bank robbery qualify, if it took place there?

Sammy Wilson: Will the hon. Lady accept that when the Northern Ireland Affairs Committee took evidence on the criminal activities of proscribed organisations in Northern Ireland, it heard that those organisations’ activities often go well beyond the boundaries of Northern Ireland—for example, smuggling drugs from outside Northern Ireland or taking fuel to other parts of the United Kingdom? Although those organisations are based in Northern Ireland, their activities are not exclusively connected with Northern Ireland; nevertheless, they have the same ability to intimidate jurors, if the cases are brought to court in Northern Ireland.

Lady Hermon: It is a rare for me to be grateful to the hon. Gentleman, but I am genuinely grateful to him. He has the dreadful habit of poking fun at the hon. Member for North Down, but I usually rise above it. On this occasion, however, he is absolutely right. His point was mentioned in the 2004 IMC report:
“We understand that virtually all the most significant 25 gangs”—
those are the most sophisticated organised criminal gangs—
“with international associations referred to above are engaged in smuggling or in laundering the proceeds of their crimes.”
International organised criminals certainly do not recognise the border between the Republic of Ireland and Northern Ireland. In fact, their operations are helped by the different ways in which both sides have constructed their legislation. However, that gap has been properly narrowed, and there is much greater co-operation between the Garda Siochana, the Police Service of Northern Ireland and the other justice agencies.
I would welcome the Minister’s explanation of the curious construction of subsection (9)(b). Subsections (6) to (8), which concern condition 4, make no mention of proscribed organisations, yet we move on to their definition in subsection (9). That means that we will have non-jury trials only if the circumstances meet the narrow phrasing. The good that we are doing with non-jury trials, which it is necessary to maintain in Northern Ireland, could be undermined by that phrase, and I do not see the need to include it in the Bill.

Mark Durkan: Given our earlier discussions, hon. Members will not be surprised to hear that I oppose the amendment. If it were to be accepted, those hon. Members representing constituencies on this island might start to catch on to the concern expressed by the hon. Member for Montgomeryshire that aspects of the Bill might be rolled out into UK-wide legislation. The Minister tried to assure hon. Members earlier that the focus is purely on Northern Ireland and Northern Ireland-related terrorist or paramilitary organisations. If the amendment were agreed to, the argument would be that if the Government are prepared to have non-jury trials for proscribed organisations that have nothing to do with the Irish situation in Northern Ireland, surely that would be the precedent for not having jury trials for those organisations elsewhere in the United Kingdom.
I know that the hon. Lady is trying to remove an awkward term from the Bill, and of course the term was in the Northern Ireland (Offences) Bill, too. The exemptions and certificates that were going to be afforded then were for any offence committed by anybody in relation to the affairs of Northern Ireland. I know why the term is questionable for many people, and I make that point in response to the comments made by the hon. Member for Montgomeryshire and the Minister. However, my reason for opposing the amendment is that it still does nothing to do away with Diplock courts. It does not alter the basic thrust of the Bill, which is to provide for continuity Diplock courts.

Paul Goggins: As ever, the hon. Member for North Down does the Committee and the process of consideration a great service by tabling amendments that allow us to face, debate and explore the issues raised by the Bill. Sometimes amendments are pushed to a vote and sometimes they are withdrawn. That is the spirit in which such things should be done. I have served on a number of Standing Committees with her, on both home affairs and Northern Ireland affairs, and she always pursues the issues in the way in which she has this afternoon. We are all indebted to her for that.
In response to her questions about why we include a fourth condition in the first limb about religious or political hostility, we do so because incidents, events and crimes might reflect the religious and political hostility that has, I am sad to say, been a feature of Northern Ireland for far too long, and there could be evidence of that but no evidence that the perpetrators were involved in a proscribed organisation. The hon. Lady might say that that is not likely, and perhaps it is not, but if the Director of Public Prosecutions had evidence that people or a defendant were involved in political or religious hostility but could not show that they were members of a proscribed organisation, it would be wrong if the option of the non-jury trial was prevented in such circumstances.
Let me take the example of Whiterock. If there was evidence that a defendant was involved in the kind of hostility that marked that dreadful event in Northern Ireland—related as it clearly was to political and religious hostility—but it was not possible to show that they were a member of a proscribed organisation, the fourth test in the first limb would enable the DPP to issue a certificate. Our motivation is to ensure that all eventualities are covered in relation to the conflict and criminality with which we are trying to deal, which is the most serious criminality in Northern Ireland.
 We are trying to limit the power in our provisions in a way that reflects the particular and ongoing risk in Northern Ireland. The kind of difficulty that arises from the way in which proscribed organisations—there are 14 in the list—relate to local communities and the hold that they have over them would undermine juries and the judicial process. We seek to deal with that, but with that alone, and we do not want to extend the provisions beyond the proscribed organisations that relate to affairs in Northern Ireland. We do not want to include al-Qaeda and other international terrorist organisations within the provisions. To answer the hon. Lady’s sharp question about the Northern Bank, if al-Qaeda had carried out the Northern Bank raid that would not be covered by the provisions. If one of the proscribed organisations listed in relation to Northern Ireland had carried it out, that would be a different matter.
 I confirm that in subsection (9) we are talking about an organisation
“whose activities ... are connected with the affairs of Northern Ireland”.
That shows a distinct relationship between the organisation and the affairs of Northern Ireland. As desirable as it is that the perpetrators of any al-Qaeda operations are brought to justice, it could not be done on a certificate issued by the DPP under the Bill’s provisions. Only those connected with proscribed organisations related to the affairs of Northern Ireland could be so brought to trial.

Sammy Wilson: Does the Minister accept that increasingly many of the terrorist organisations based in Northern Ireland are involved in international criminal activities, according to briefings by both the police and the Government? Those criminal activities may stretch to mainland Britain or the Republic of Ireland. If the people responsible are apprehended in Northern Ireland and there is a danger that they would seek to intimidate a jury, would the case be required to go to a jury trial because the activities were not connected to Northern Ireland? Would a trial be heard in a non-jury court for criminal activities that take place outside Northern Ireland?

Paul Goggins: My response to the hon. Gentleman continues my response to the hon. Member for North Down. We do not have evidence of jury intimidation by members of international terrorist organisations that have nothing to do with Northern Ireland issues, but we have evidence of proscribed organisations in Northern Ireland intimidating juries. Therefore, the provisions will protect juries and justice to ensure that trials can be conducted properly. We do not have evidence that international terrorists are intimidating juries in Northern Ireland so that justice cannot be done. If we had such evidence, we might look at the situation again. The only evidence we have relates to Northern Ireland proscribed organisations, and that is why the legislation focuses on that issue alone.
In the circumstances highlighted by the hon. Member for East Antrim, in which a proscribed organisation in Northern Ireland has links with international terrorist organisations, those matters relating to members of the proscribed organisation in Northern Ireland could be dealt with under the provisions of the Bill. Matters relating to members of other organisations could not.
We are seeking to ensure that we have a provision for non-jury trials, because that is still necessary in view of the risks that exist in Northern Ireland. However, we  want to balance that by trying to focus the powers as narrowly as possible within the agreement. We need to continue the provisions in some form for the future.
 Mark Durkan rose—

Paul Goggins: I knew it would not be long before my hon. Friend intervened.

Mark Durkan: I thank the Minister for taking this intervention. Perhaps he did so because I tried to be helpful earlier.
The measures apply to people who are, or who may have been, members of proscribed organisations. Given the Government’s repeated statements of satisfaction, and the glowing tributes they have paid to the position and stated future intentions of the IRA and the Provisional IRA, have any assurances been given that they do not envisage the measures being used against anyone who was a member of the Provisional IRA?

Paul Goggins: Considering that we have not agreed on anything in our proceedings, the spirit remains positive, and I thank my hon. Friend for that.
When we look at the list of proscribed organisations relating to Northern Ireland, we see that, interestingly, the Provisional IRA is not on it. The Irish Republican Army, which covers a number of organisations including PIRA, the Real IRA and Continuity IRA, is on the list. I assure my hon. Friend that there is no hidden agreement lurking around. The IRA remains a proscribed organisation, and there are no plans to change that.
I hope that I have helped to clarify the position for the hon. Lady and that she accepts the argument. We are seeking to ensure that the powers to have non-jury trials when necessary are limited to circumstances pertaining to Northern Ireland.

Lady Hermon: I am most grateful to the Minister for trying to explain why the clause is constructed as it is. I take the view that there is no such thing as a good terrorist or a bad terrorist. There should not be a distinction between home-grown terrorism in Northern Ireland or on the island of Ireland and vicious, nasty, murderous terrorists, such as al-Qaeda. We have seen what they can do. We saw, not far from here, in London on 7 July the absolute havoc that they can wreak.
Two al-Qaeda suspects have been arrested and charged in Belfast. I am sure that the case is sub judice and so I will not say anything more about it. These organisations are ruthless and have murderous intent. They have no comppassion for their co-religionists or anyone else in the pursuit of their political aims. In my book, when we have a lengthy list of proscribed organisations in the 2000 Act, I do not want the distinction that we have non-jury trials only for those home-grown terrorists. They are not better terrorists. Terrorism is terrorism, as far as I am concerned.
 I appreciate the Minister’s efforts, valiant as ever, to explain why the clause has been constructed as it has and why it focuses on home-grown terrorism, but it is just not an argument that I can buy into. I am sure that he did not mean this, but he said that the whole provision is to protect juries. With the greatest respect to him, and he knows that I hold him in the highest esteem, the whole provision is not just about protecting juries. It goes much wider than that. The Liberal Democrats alluded to this when we did not adopt their amendment, although the Minister is going to consider it. There is a risk that the administration of justice might be impaired. That is wider than the intimidation of juries; it means the intimidation of witnesses.
It is difficult to ask people to come forward and appear in a jury in a small jurisdiction with international press coverage. We have a lot of press coverage in Northern Ireland for a hole host of reasons, sometimes the wrong reasons. We have a lot of media attention. It takes a very courageous man or woman to step in as a witness in the case of an al-Qaeda terrorist who has committed atrocious crimes in Northern Ireland or who has been associated in some other terrorist activity in Northern Ireland which might affect all of the United Kingdom.
We have an opportunity in this Bill. As the hon. Member for Foyle said, we do not want to have to come back to amend it. So let us get it right when we have the chance to do so. Let us not just legislate for the present. Let us take into account what the Prime Minister told us at the end of last week: it will take at least a generation to defeat this kind of international terrorism.

Paul Goggins: The hon. Lady argues passionately about this. I understand why. She condemns international terrorism as much as the rest of the Committee, but does she have any evidence that international terrorist organisations that have no specific interest in the affairs of Northern Ireland are threatening and intimidating either witnesses or members of a jury in Northern Ireland? If she does, I would be pleased to look at it.

Lady Hermon: I am obviously grateful to the Minister for that very awkward intervention. He is entitled to ask that and the answer is clear. Does everyone come forward to say, “I have been intimidated.”? Of course they do not.

Sammy Wilson: Whether or not there is evidence of specific cases, does the hon. Lady agree that if international terrorist groups are linking themselves in the supply of drugs, smuggled cigarettes and arms to groups in Northern Ireland which are prepared to intimidate jurors on behalf of their members, they are equally likely to intimidate jurors on behalf of their associates?

Lady Hermon: Again, I am grateful to the hon. Gentleman for that helpful intervention. He is in sparkling form this afternoon. He is absolutely right. He sits on the Northern Ireland Policing Board, which I do not, so he has access to information that I do not see. His intervention was spot on.
We have evidence, documented by the IMC, that there are international links with sophisticated criminal gangs in Northern Ireland. It beggars belief that the Minister is asking the hon. Member for North Down to identify and to give evidence of intimidation. I take my hat off to the people who very courageously come to my constituency surgery on a Friday evening—they want to sit in the back office and do not want their names mentioned anywhere at all—to give information about neighbours who will slit the throat of their own dog to make sure that they are not awakened and that nobody’s attention is drawn to the fact that they are shifting drugs late at night. We are talking about utterly ruthless people. Those who come to me to say that they are prepared to allow their homes to be used for police surveillance are enormously courageous. I do not in any way diminish the threat.
In fairness to the people of Northern Ireland, we should be much more realistic about the future dangers to the whole of the United Kingdom. That includes Northern Ireland, which, as I pointed out this morning, can be accessed through many ports in the Republic of Ireland, through Shannon and through Dublin. There are no manned borders—we no longer have checkpoints.
I want to get this legislation right. The Minister has argued that there should be a discretion for the DPP. I disagreed, but we all want to get the legislation right now, so that we do not have to come back later and amend it to take account of changing circumstances. For goodness sake, let us allow for flexibility instead of tying the hands of the DPP. The Minister has managed to argue against himself in the last 15 minutes. He wants us to give the DPP discretion in circumstances that he cannot identify, but would also tie the hands of the DPP. Let us not give al-Qaeda or any other hideous proscribed terrorist organisation a fair wind through Northern Ireland to wreak havoc, and then stand back wringing our hands in regret when somebody is dead. Let us accept the amendment today and not argue about it. Accept the amendment and give flexibility to the DPP. I rest my case.

Question put, That the amendment be made:—

The Committee divided:

The Committee divided: Ayes 2, Noes 18.

Question accordingly negatived.

Nicholas Winterton: I say to the hon. Members for North Down and for East Antrim that I, too, have been on my own on many occasions during my parliamentary career.

Lady Hermon: I beg to move amendment No. 26, in clause 1, page 2, line 28, leave out ‘in an enduring family relationship,’.

Nicholas Winterton: With this it will be convenient to discuss amendment No. 7, in clause 1, page 2, line 29, leave out paragraphs (d) and (e).

Lady Hermon: I am encouraged to know that you have been on your own on many occasions, Sir Nicholas. I am most grateful for the right thinking of the hon. Member for East Antrim—a rare occasion. I will move on swiftly, before the hon. Member changes his good mood.
I take my hat off to whoever drafted this legislation, which is full of all sorts of idiosyncratic drafting, not least subsection (10):
“For the purposes of this section a person (A) is the associate of another person (B) if”—
then there is a definition and we have a number of choices:
“(a) A is the spouse or a former spouse of B,
(b) A is the civil partner or a former civil partner of B,
(c) A and B (whether of different sexes or the same sex) live as partners, or have lived as partners, in an enduring family relationship,
(d) A is a friend of B, or”—
lastly—
“(e) A is a relative of B.”
My amendment would leave out the curious five words—
“in an enduring family relationship”.
I cannot understand why they have been introduced only in paragraph (c). We need the Minister to explain the meaning of “an enduring family relationship”. Does “family” mean that there have to be children? With regard to paragraph (a)—
“A is the spouse or a former spouse of B”—
it does not matter that there was not an enduring family relationship, with no children. With civil partners, it does not have to be an enduring family relationship. In heaven’s name, why has the phrase only been introduced in paragraph (c)? It stands out because it is so unusual and odd in the examples given for the definition of “associate”. I do not see any rhyme or reason for that and I would like the Minister to explain in his usual wonderful style—colourful and imaginative—why “enduring family relationship” has to be here. Why “enduring”? Why “family”? Are children involved? Why are those words not included elsewhere in subsection (10)?

Alan Reid: Amendment No. 7 would delete paragraphs (d) and (e), where an associate is defined as a friend or a relative. The amendment returns to a point that we made on Second Reading. I believe that the definition of “associate” is generally too broad and has to be tightened.
Paragraph (d) defines an “associate” as “a friend” and paragraph (e) as “a relative”, but how do we determine whether a person is a friend or relative of another person? The terms are open to many differing interpretations. For example, two people might be cousins but might not have seen each other since childhood. On the other hand, are we going to include second, third or fourth cousins? Where do we stop? That is an important issue as to whether or not a trial is conducted with a jury.
I want the Minister to tell us whether “friend” or “relative” have been used in other legislation. Is there a legal precedent to determine their definition? Unless the Minister can convince us, the terms are far too vague to be included.

Laurence Robertson: I am following the hon. Gentleman’s argument. Does he not believe that there is a distinction between friends and relatives? I understand his point about third and fourth cousins, but whether someone is a relative can be determined fairly, which is not necessarily the case with a friend.

Alan Reid: The hon. Gentleman makes an important point—relatives and friends are different. The Government should list relationships that will count, but that would be impossible in the case of friends. If they do not do that, the wording will be far too vague.

Sammy Wilson: Does the hon. Gentleman accept that although the terms “friend” and “relative” are fairly vague, the second condition must also be met? Whatever relationship exists, there must still be a risk that it will lead to jury tampering or the intimidation of a juror.

Alan Reid: I accept that there has to be a risk, but without definitions of “friend” and “relative” the wording is far too vague. We should remember that under the clause the DPP has the absolute right to take decisions and cannot be challenged by a court. If the DUP—I mean the DPP—[Interruption.] I hope that it will not be the DUP that takes the decision. The DPP will take the decision, so we need clear definitions. As I said, we do not know where the definition of relative will end. I hope that the Minister will give examples from other legislation and reassure us that the definitions are clear.

Mark Durkan: For the same reasons as others, I do not support the amendments, although I have some sympathy with the points made in support of them. When reading subsection (10) I begin to feel as though I am at a meeting to put together the bones of a soap opera: A can be the spouse or former spouse of B, his civil partner, friend, relative and so on. Those definitions are clearly wide.
The most disturbing point that the Minister made was that the certificate will not indicate the grounds being used to justify it. A defendant will not know whether they are being sent for a non-jury trial because of a relative, friend or other reason. No information will be given: neither the defendant nor the court will know. That will put people in an impossible situation.

Lembit Öpik: Does the hon. Gentleman agree with the half-facetious point that since almost everyone I have met in Northern Ireland, apart from a few Estonians, are relatives or friends of each other, this is the Government’s back-door way of abolishing jury trial in Northern Ireland for ever?

Mark Durkan: That could be so. In fact, in many parts of Northern Ireland the word “friend” is used to mean a relative. To say that somebody is your friend indicates that they are a cousin or that there is some family connection. I doubt whether Ministers were aware of that subtlety of dialect in parts of Northern Ireland.
The clause and other provisions in the Bill will mean that people affected by the list in subsection (10) will not know on what grounds they have been given a non-jury trial, and they will not be able to say anything. I can imagine that a defendant might well be puzzled and stressed and want clarification of what has been said about him.
 Many people in Northern Ireland are related to those who have been members of proscribed organisations, but have themselves never given those organisations any support and have views diametrically opposed to theirs. There may also be many people in senior positions with such relatives. So although I have a lot of sympathy with the attempt to restrict the list, the problem is that it does not go far enough, because I do not think that we should be making the provision for non-jury trials at all. That is why I would not strongly oppose the amendments. However, because of my reservations about continuity Diplock courts, I will not support them.

Paul Goggins: The hon. Member for North Down has asked why the provision concerning enduring family relationships in clause 1(10)(c) has been included. The reason is that we need to say more about the nature of the partnership. Other subsections refer to the spouse or former spouse, civil partner or former civil partner, and the nature of those relationships is defined in legislation, so there should be no confusion. However, in paragraph (c), we need to define the nature of the partnership. Business partners could not be included, for example.

Laurence Robertson: Why not?

Paul Goggins: Because we are defining very precisely what we mean by partners in an enduring family relationship—people who share a life together. “Enduring” implies a length of time. “Family relationship” implies sharing a house and common facilities, which normally happens in families. We do not intend the provision to cover business partners, romantic partners or people who meet up every day of the week at the same time and place to go to the same pub and carry on the same activities. They will not be caught by the provision.
 I say again to the hon. Lady, as gently as I can, that it is important to ensure that we have the capacity for trials without jury in Northern Ireland—for all the reasons that we have heard, we want to limit them for use only when required. The provision explains the meaning of the term “partnership” in the present circumstances. The term “enduring family relationship” explains that the context is a length of time and shared household facilities. Those matters are defined in statute in relation to spouses and civil partners, but they are not defined in respect of other relationships.

Laurence Robertson: In that case, I admit to being confused as to what the Government are trying to achieve. To qualify under this provision surely means that there is some kind of relationship. As the hon. Lady has said, what difference does it make whether the relationship is an enduring family one or one in which the parties live together? If they live together, could they not qualify to some extent as friends? That may not necessarily be the case, but given that  paragraphs (d) and (e) are so broad, I should have thought that they would. The Minister has said that business partners would not qualify, but surely business partners have pretty much an everyday relationship.

Paul Goggins: It may well be that in that kind of relationship the description “friend” would be adequate. What we are seeking to do in paragraph (c) is to extend what is covered by paragraphs (a) and (b). Paragraph (a) clarifies that spouses are covered, and the term spouse is defined in legislation. Paragraph (b) covers civil partners, which is also a term defined in legislation. There are other people, however, who live together in enduring family relationships and who are neither spouses nor civil partners. We simply wanted to extend the explanation of the provision’s intention by including an additional paragraph, which seeks to describe people who share a family relationship over a period of time who may not be spouses or civil partners but who may have an enduring family relationship. It could even be that they are friends and that they qualify in that way, but we do not want there to be the possibility of omitting them. It is important that such situations are brought to the attention of the DPP, which is why the provision has been included.
In looking for an explanation for paragraph (c), the hon. Gentleman needs to look at paragraphs (a) and (b), not paragraphs (d) and (e). We are seeking to fill a small gap in our explanations.

Lembit Öpik: In which case, the Minister needs to explain the definition of “friend” and explain the process by which the friendship will be proved. He must be aware that, if he is trying to avoid the risk of corruption, there will be a strong incentive for people who are friends not to admit it.

Paul Goggins: The hon. Gentleman invites me to move on to my next point, which I am happy to do, and to respond to the points made by the hon. Member for Argyll and Bute.

Peter Bone: If two people are living together as partners, at what stage do they qualify for an enduring family relationship? Is it three months, six months or a year?

Paul Goggins: The DPP will have to make that judgment, as he will have to make a similar qualitative judgment in relation to the description of “friend” and “relative”. There is a qualitative judgment to be made, and it will be for the DPP to make it. We do not seek to prescribe that in absolute terms, as the hon. Member for Argyll and Bute has suggested that we might.
If we were to accept the amendment tabled by the hon. Member for Argyll and Bute, the only people who would be covered by the provision would be current or former spouses, civil partners or people living together
“in an enduring family relationship”,
which would leave a large gap in the provisions. If he feels that the clause is drawn too widely, there is always the second limb of the test, which states that there has to be a risk of the administration of justice being impaired. I remind him that the test in clause 1(10) is not a casual one and does not stand on its own, but sits alongside the test regarding administration of justice.
 Under the hon. Gentleman’s amendment, if evidence were brought to the DPP’s attention that a major player—a leading member of a proscribed organisation—was making preparations to intimidate jurors because his son happened to have been charged with a serious offence that was about to be heard by a jury in court, the DPP would not be able to issue a certificate, which would leave a large gap in our provisions. Although the nature and quality of the friendship or family relationship, or the length of the enduring family relationship, is a matter for judgment, it is important that the DPP can exercise their judgment, otherwise some serious cases could be missed, certificates might not be given and there could be major threats to and intimidation of juries and witnesses in Northern Ireland. We want to avoid that, which is why these provisions are necessary.
 I invite the hon. Member for Argyll and Bute to withdraw his amendment.

Lady Hermon: I am grateful to the Minister for trying to explain the drafting of clause 1(10). He has made a good effort, but I think that we are splitting hairs. For example, in respect of a spouse, we have no idea how lengthy the marriage will be; we just know that a box will have been ticked and that the people were married at some stage. If we are talking about a former spouse, we know only that they were divorced or separated at some stage. There is no requirement for consideration of the length of time that the marriage may have lasted—it does not have to be enduring.
Unfortunately, although the Minister has acknowledged that the Government were hoping to cover a relationship, including a house and all the things that would show some sort of commitment, he did not answer my specific question about whether that means that there have to be children. The term “enduring family relationship” implies more than owning a house, which is the only thing that the Minister has alluded to. We have given the DPP a major headache in trying to decide who falls into the categories in subsection (10).

Paul Goggins: As always, I am seeking to clarify the points. It is not necessary for there to be children within an enduring family relationship. A family can exist without children, so there may or may not be children.

Lady Hermon: That is the answer that I expected the Minister to give, because, of course, paragraphs (a), (b), (d) and (e) do not mention family. Paragraphs (a) and (b), in particular, do not mention having a family or having children. It would have been ludicrously discriminatory if the provision depended on the presence of children when people live together as partners, but not in the cases of civil partnerships and marriages. That would not have been a tenable position.
I would be happier if the Minister were to say to the Committee that he and his officials will reflect on the matter, because I have some difficulty in deciding whether, for example, paragraph (b) refers to a civil partner or a former civil partner. Surely that cannot be mutually exclusive of being a relative or, indeed, a friend, which are categories (d) and (e).
The list is very difficult, and we are giving the DPP a difficult task.

Paul Goggins: Let me try to be constructive. There are issues here which will divide this Committee, because there are issues of principle and genuine disagreements. In trying to set out a definition, we are seeking the best and the tightest definition. I discount proposals, however, that we should leave out relatives and friends, because I think that they should be included. We are trying to define the nature of a family relationship. Some of this is already set in statute, and some of it is not.
I will reflect on our discussion. If there is a better way of expressing this, I would be more than happy to come forward with a suggestion. If there is not, the hon. Lady will at least know on Report that I have thought about it.

Lady Hermon: I want to commend the Minister on the wisdom of his decision to reflect upon this and to come back to it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nicholas Winterton: Because clause 1 contains a great deal of the meat of the legislation, I am prepared to allow what I hope will be a short stand part debate. Hon. Members may raise matters that we have not discussed in concentrating on the main issues raised by the clause. This is, therefore, a clause stand part debate.

Lembit Öpik: I am grateful for this opportunity. However, it will not be constructive if we all simply repeat the arguments that we have already made. I would like to discuss why I oppose the clause as it stands.
The Minister has not taken on board our strategic concerns about not permitting a judge to be at the heart of the issue of a certificate. His adherence to an administrative approach is profoundly wrong for the reasons that we have discussed. Given the debate that we have just had, it is quite obvious that many of us have the gravest reservations about what the definitions actually mean. I was only half joking when I said that it will be difficult to find individuals who do not fall foul of all the conditions—a large proportion of the Northern Ireland population is related to itself. In addition, if individuals try to cheat the system, they are unlikely to volunteer information regarding their relationship with other people. The Minister must give some thought to that.
 I am encouraged by Minister’s indication of his willingness to consider the import of amendments Nos. 3 to 6, and I hope that he will take on board the points that my hon. Friend the Member for Argyll and Bute has made about the wording, which is once again vague and leaves great latitude for interpretation. That latitude is bound to be taken advantage of by those people who have evil intentions. It would make it easier for everybody if, on reflection, he chose to make a few minor modifications, perhaps in line with what the hon. Member for North Down has suggested.

Nicholas Winterton: That was a good example of a stand part debate speech.

Mark Durkan: I shall avoid rehearsing a number of the points that we have dealt with earlier.
 I oppose this clause. We have already discussed the detail of the provisions involving the DPP and the circumstances in which the non-jury trial option might be used. We have also touched on the Secretary of State’s comments on Second Reading that national security and intelligence matters could be considered in that. I want to share one of our fundamental concerns with the Committee, which is that the provisions have implications for how things will work out and be seen to work out in the devolution of policing and justice. The clause gives a key role, which is quite controversial, to the DPP to do something that the Government have assured us would not be provided for.
The joint declaration of 2003 made it clear that the emergency provisions were going to go. The Government amendments to the Terrorism Act 2003 gave effect to the commitments in the 2003 joint declaration, but now they have been reversed. When those amendments removed the Diplock courts and made sure that they would not exist after July 2008, we were also debating the options for the devolution of justice and policing.
Anyone looking at those debates taking place in parallel would see that, with the arrival of justice and policing devolution, a devolved Minister would not be in a position to face questions about decisions on the use of non-jury trials, even though he they might have their own views or concerns. They would not be in a position to know why such decisions were taken, because, as the Secretary of State suggested on Second Reading, the DPP would be taking them on the basis of receiving information from MI5 or a similar source. The devolved Minister—a devolved committee in the Assembly might also be interested or concerned, because no doubt lawyers, defendants and other people would be writing to it—would be in the difficult position of having to say that they knew nothing, could know nothing and potentially could do nothing.

Lady Hermon: Will the hon. Gentleman enlighten the Committee: does he believe in an independent prosecution service? We legislated for such an independent prosecution service not so long ago in this House. I greatly admire the independence of the DPP and hate the thought of a politician being able to call them up and influence their decision. Do the hon. Gentleman and his colleagues not support the idea of the independence of DPP within the Public Prosecution Service?

Mark Durkan: I assure the hon. Lady that we absolutely do. I did not say that any Minister would wish to influence decisions; I said that they would not be in a position to know why decisions were made or anything else about them. The fact is that a Minister will inevitably face questions, whether they are from lawyers, defendants or members of committees.
If there is a pattern of non-jury trials and no information is given in the certificates, people will say that we should at least know on what grounds people are being referred to a non-jury trial. People will question the procedure and protest the fact that they cannot know why the certificates were supposedly issued. Lawyers will protest at that.
If a devolved Minister is meant to simply defend the status quo, then they will be is in a very constrained and difficult situation. That is why we said on Second Reading that the Bill is pregnant with implications and complications for the devolution of justice and policing. Perhaps the Minister will clarify the plans for the devolution of justice and policing. The provisions are not renewable but permanent. Will the amendments be subject to Westminster legislation or can they be altered, amended or repealed by the devolved Assembly after devolution? Will the Minister clarify which it is to be? If they are to be amended by the Assembly, I assume that cross-community support will be needed before they can be altered.
 In a sense, the Bill means that Diplock courts will be born again just ahead of the devolution of justice and policing. They will become part of the suite of devolved justice arrangements, which can be changed only on the basis of cross-community support. On current form, that will not happen unless and until the DUP says so. Not only will we have continuity Diplock courts, but essentially we will have DUP-lock courts. Again, I ask the Minister whether Sinn Fein fully realises that. Is Sinn Fein in on it, or has it slept in?

Laurence Robertson: As you rightly say, Sir Nicholas, this clause is the meat of the Bill and it has been discussed for the best part of two sittings, as is right, so I shall keep my remarks short. I entirely understand where the hon. Member for Foyle is coming from. That said, I support the clause because it at least moves in the right direction. It shifts the emphasis and makes a presumption for a trial by jury. The reasons why a trial should not be by jury have to be shown, although I accept that they do not have to be shown to the defendant.
 I retain my concern. I listened to the Minister carefully and I think that it should be a matter for the Lord Chief Justice of Northern Ireland to decide. I am still concerned that the person who will carry out the prosecution will decide on the mode of trial and I do not think that that is correct. However, that is not a strong enough objection to cause me to vote against the clause.
We discussed subsection (10) fairly briefly, and a number of interesting points came up. I accept that it is difficult to determine what an associate is, but with respect to the Minister the debate showed that there are a number of holes in the attempt that has been made. He generously offered to go away and consider it, and I urge him to do so as there are a number of holes. I cannot see why the words “enduring family relationship” are used. It is difficult to define a friend. I cannot see why a business partner should not qualify or why a spouse or parent should not qualify, too. However, with those few comments I shall give the clause fairly guarded support, but support nevertheless.

Sammy Wilson: Despite the support that I have given to some of the amendments moved by the hon. Member for North Down, I do not believe that they are sufficient to cause us to vote against the clause in its totality. We believe that non-jury courts are essential in some circumstances in Northern Ireland. The implication in some of the opposition to the use of non-jury courts is that somehow or other the justice in non-jury courts is different from or of a lesser standard than that in a jury court. That was never the purpose of non-jury courts; the purpose of non-jury courts was to ensure that justice was done. Justice was done by stopping the interference of those who would wish to subvert the justice system by intimidating jurors. That  is one of the reasons that I do not have a great deal of concern about the continued use of non-jury courts. I see them as a means of ensuring that the integrity of the justice system remains and is protected, and that people who would have been guilty of horrific offences are brought to justice.

Lembit Öpik: Is not the hon. Gentleman conscious of the fact that he can achieve that quite straightforwardly by relying on the Criminal Justice Act 2003? We do not need separate and distinct legislation for Northern Ireland to achieve that goal.

Sammy Wilson: I do not accept that. Clause 1 quite clearly gives the scope to the DPP if he is sure that certain conditions have been met. We have discussed whether those conditions are tightly defined. He must be satisfied that there is a risk to the administration of justice. I believe that the safeguards are sufficient.
I do not accept the point made by the hon. Member for Foyle that the provisions will make the devolution of policing and justice more difficult. If anything, they will probably build in a further safeguard for those concerned about that devolution and whether community confidence is sufficient for it to work. Those who would want to question a Minister about why a case is being taken to a non-jury trial would do so with one view—to change the outcome. They would be seeking ministerial interference. In the context of Northern Ireland devolution and the administration of policing and justice, a situation that allows even the thought that the administration of justice might be interfered with in that way would make it more difficult to gain the confidence required for devolution.

Mark Durkan: First, questions or representations to a Minister might well come in circumstances where somebody finds themselves subject to a non-jury trial and they or their legal representative challenge the decision. It is as much as if to ask, “How can you be the Minister for this? Is this what you signed up for? This isn’t what you as Minister promised us would flow from the Good Friday agreement.”
Secondly, Members of the Assembly might want at the end of a given year or longer period to question the pattern of use of the power, or might have concerns about the number of times that it has been used, but there is nowhere particular for those questions to go. The hon. Member for North Down said earlier that I was trying to fetter or qualify the independence of the Director of Public Prosecutions, but we heard from the Secretary of State that the DPP will be influenced by MI5. Elected politicians will have no way of knowing what is going on and will not even be allowed to ask.

Sammy Wilson: I note the hon. Gentleman’s remarks, although I must say as a member of the Northern Ireland Policing Board that of course Members had questions on many occasions about why the police had done something or not done something else. When it was explained that security issues were involved and therefore the police would not discuss it with the Policing Board, I never noticed SDLP Members jumping up and down. They accepted that there would be times when, in the interests of security and the protection of intelligence sources, such issues  could not be discussed. There is an acceptance that it is not always possible to discuss devolved issues in public or for them to be open to public scrutiny.

Mark Durkan: The Minister will not be allowed even to discuss it.

Sammy Wilson: I return to the point that I made at the start, which is that the reason why many would want the Minister to have input is exactly so he could influence. If that were ever introduced, the devolution of policing would be made that much more difficult. In his own remarks the hon. Gentleman indicated that it was a divisive issue in Northern Ireland and the fact that he said that, were it to be subject to a cross-community vote it would not get through the Assembly, shows that it is still a confidence issue. For that reason, the Bill’s approach is correct and we shall support the clause.

Peter Bone: There is just one thing that I want the Minister to make clear. In respect of clause 1, I am concerned about voting for a massive increase in non-jury trials in Northern Ireland. What does the Minister estimate will be the difference between the current and future situations if the measure is passed?

Paul Goggins: When my right hon. Friend the Secretary of State said in August 2005 that we would repeal part 7 of the Terrorism Act 2000, it was made clear that the issue of non-jury trials would require further hard thinking and decisions. A considerable amount of work has been done since then to deal with the issue in the context of a reducing number of non-jury trials under the Diplock system—there were 354 in 1987 and 49 in 2005. However, if there were jury trials in all cases there would still be a serious risk of jury intimidation and that justice would not be done.
We resolved to find a way of changing the presumption in favour of trial by jury but ensuring that in the small number of cases in which it was necessary a non-jury trial would still be available. We adopted an administrative approach to the decision making; some hon. Members disagree with that but we believe that it is right way to go, given the sensitive information that is often dealt with. The DPP is in a good place and has the right kind of experience and knowledge to make that decision.
Clause 1 describes the statutory test and states the conditions in respect of membership of proscribed organisations and the nature of religious and political hostility. Subsection (2)(b) describes the crucial second limb of the test: a risk that the administration of justice might be impaired.
I agreed to take away and consider at least two issues raised in the debate and I will of course look at the whole debate carefully, too. I am prepared to consider seriously the wording “administration of justice” and “interests of justice”, as suggested by the hon. Member for Montgomeryshire, although with no commitment as to the outcome. I will also look again at the issue of family relationship to see whether we can find greater common ground.
My hon. Friend the Member for Foyle raised the devolution of justice and policing. I will not widen the debate further from the exchange between the two hon. Members, but there is considerable discussion to be  had on that matter. In relation to the Bill, we need to give the issue some thought because it is a criminal justice matter, and criminal justice can be devolved, but it also relates to issues of national security which, as my hon. Friend knows, will not be devolved.
I want to think a little more about the matter and I may write to the Committee outlining our current thinking in order to inform our future debates.

Question put:—

The Committee divided: Ayes 14, Noes 3.

Question accordingly agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2

Certificates: supplementary

Motion made, and Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 13, Noes 4.

Question accordingly agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3

Preliminary inquiry

Motion made, and Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 16, Noes 1.

Question accordingly agreed to.

Clause 3 ordered to stand part of the Bill

Nicholas Winterton: I make the comment to the hon. Member for Foyle that I made to the hon. Members for North Down and for East Antrim: persevere with your principle.

Clause 4

Court for trial

Lady Hermon: I beg to move amendment No. 29, in clause 4, page 3, line 26, leave out subsection (2).
I am encouraged and inspired by your words, Sir Nicholas. We shall fight on to amend some of the clauses.
We need some clarification of the clause from the Minister. It relates to the type of trial that will take place if a certificate has been issued. The clause states that:
“A trial on indictment in relation to which a certificate under section 1 has been issued”
by the DPP, who has gone through all the checks and decided that one of the conditions in clause 1 has been met and that there is a risk to the administration of justice, will be held at the Crown Court in Belfast,
“unless the Lord Chief Justice of Northern Ireland directs that—
(a) the trial,
(b) a part of the trial, or
(c) a class of trials within which the trial falls,
is to be held at the Crown Court sitting elsewhere.”
The amendment relates to subsection (2):
“The Lord Chief Justice of Northern Ireland maynominate any of the following to exercise his functions under subsection (1)—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);
(b) a Lord Justice of Appeal (as defined in section 88 of that Act).”
I am worried by that provision, given the seriousness of the issues that we have discussed this afternoon and the nature of the cases that would be referred to non-jury trial. That is not meant as a criticism of the present Lord Chief Justice of Northern Ireland, whom I hold in the highest esteem, as, I am sure, do hon. Members right across the House.
In giving the Lord Chief Justice the discretion to nominate “any of the following”, the subsection makes reference to schedule 1 to the Justice (Northern Ireland) Act 2002. When I mention individual offices, it is not meant as a criticism of the holder; I do so because those offices are listed in that schedule. Listed among the judicial offices to which the Lord Chief  Justice may delegate the serious responsibility of deciding on a non-jury trial are the chief child support commissioner for Northern Ireland; the child support commissioner for Northern Ireland; the deputy child support commissioner for Northern Ireland; the president of the Lands Tribunal for Northern Ireland, and a member of the panel of chairmen of the fair employment tribunals. The list extends to more than a score of judicial offices, including lay magistrate. Are we to understand that the chief social security commissioner, the Lands Tribunal president, a lay magistrate, or a member of the mental health review tribunal, all of whom are in listed in schedule 1 to the 2002 Act, should be tasked with the great responsibility of deciding on a non-jury trial? I should have thought not.
If we do not delete all of subsection (2), perhaps the Minister could have a rethink about to whom exactly the Lord Chief Justice should delegate. There is no criticism of his judgment. I just think that lay magistrates, chief commissioners of social security and presidents of the Lands Tribunal may be somewhat surprised, to put it mildly, if they have delegated to them a responsibility for a non-jury trial in Northern Ireland in relation to a proscribed organisation. That is the point that I wish to make with this amendment.

Alan Reid: I agree with the hon. Lady and share her concerns. Subsection (2) allows the Lord Chief Justice to decide that a trial, a part of a trial, or a whole class of trials should be held somewhere other than Belfast. The hon. Lady read out a list of the various offices to which the Lord Chief Justice could delegate that decision. Many of the people on that list will not be legally qualified. I am concerned that they would be taking very important decisions. Members of various tribunals might not have a legal qualification. I do not think it appropriate that everyone on that list should have this power. I am not familiar with all the courts in Northern Ireland and whether they have the same levels of security as the courts in Belfast. I would certainly want the Minister to address that issue. Do other courts have the correct security facilities to protect the identity of witnesses who have been granted anonymity? The hon. Lady has raised some important points and I ask the Minister to respond.

Paul Goggins: Once again, the hon. Lady demonstrates the trouble she goes to in looking into the detail of this. I, too, looked at the list of office holders in schedule 1. She omitted to mention the president of the special education needs tribunal for Northern Ireland, who probably sits alongside some of the other people she mentioned. They all do their job perfectly well. But that is not the issue she raises here. This is a case of, “If it ain’t broke, don’t fix it.” I hope to explain to the hon. Lady why I believe that we should leave the situation alone. This provision is similar to one that already operates successfully under the Diplock court system. We see no reason to change it.
Most non-jury trials take place in Belfast in circumstances where the greatest security can be afforded. Hon. Members would expect that.  Occasionally, for various reasons, it may be necessary and appropriate to hold the proceedings outside Belfast. The provision gives the Lord Chief Justice the power to make that decision. It also gives him the power, in the part of the clause to which the hon. Lady has drawn our attention, to delegate that decision to others. One can imagine the circumstances when that may occur. For example, if the Lord Chief Justice is ill, indisposed or away for some reason, it may be necessary for that decision to be taken in his absence. He needs the power to delegate.
Of course, one would expect the decision to be delegated to someone with appropriate experience and seniority. The key judgment here is not about the list. It is about the Lord Chief Justice’s own capacity to decide who in this list would be the appropriate person to take that decision. The evidence is that the Lord Chief Justice has operated a similar system under the Diplock regime perfectly well and without any cause for concern. It is therefore perfectly legitimate to continue that arrangement and use schedule 1 to give the Lord Chief Justice discretion in a way that has already worked.

Lady Hermon: I am grateful to the Minister for graciously giving way. The Diplock courts obviously preceded the list in schedule 1 to the Justice (Northern Ireland) Act 2002 of people who do their jobs very competently but are not all legally qualified. Will the Minister enlighten us as to what used to happen if the Lord Chief Justice found himself indisposed or too busy? To whom did he delegate?

Paul Goggins: The hon. Lady has got her own back. I shall need to check what happened in those days, and I will be happy to write to her—or to point out that an amendment was made in the Constitutional Reform Act 2005. I hope that that answers her question at least partly. The formulation is standard and has been used a number of times in legislation such as the 2005 Act which sets out other functions of the Lord Chief Justice. The system already operates in relation to Diplock and exists in other legislation to give the Lord Chief Justice flexibility. It has worked and we see no reason to alter it in the Bill.

Stewart Jackson: I am listening carefully to the Minister’s case, which is quite persuasive, but the provision seems a incongruous part of the clause. Before we make a decision on the amendment it is incumbent on him to share with us the likely number of cases in which the Lord Chief Justice will be incapacitated and the number of such cases that have occurred under the current situation.

Paul Goggins: When I write to the hon. Member for North Down I will share with the Committee the information that I send her. If I am able also to share the numbers that the hon. Gentleman mentions I will happily do so. In 2005, only 49 cases were conducted by non-jury trial. By definition, the number of those that were delegated by the Lord Chief Justice is likely to have been small. If there are numbers that I can share, I will do so and perhaps include them in the same correspondence as the details requested by the hon. Member for North Down.
I do not wish to make heavy weather of the matter: the proposed formulation operates in other legislation  and has worked in relation to Diplock. We see no reason to change it, as it works perfectly well. I understand why the hon. Lady raised the matter—she is rightly scrutinising every aspect of the Bill. I hope that I have been able to offer her some reassurance.

Lady Hermon: I am indebted to the Minister for trying to explain why the clause was written as it was. I must point out to him that there are two paragraphs in subsection (2). Paragraph (b) specifies that if the Lord Chief Justice is ill or too busy, he can delegate an important decision to a lord justice of appeal. I shall not press the amendment, but I look forward with curiosity to hearing the list of alternatives for the Lord Chief Justice. The Minister has told us that before the 2002 Act there were more than 300 Diplock court cases a year, touching on 400. I will be intrigued to find out to whom the Lord Chief Justice delegated his responsibilities then. The list in schedule 1 to the 2002 Act includes coroners, for goodness’ sake, and lay magistrates. The alternative is staring us in the face in paragraph (b). I suggest that the Minister should have a good night’s sleep and reflect more wisely on the relevant category of non-jury trials. We should not lose sight of what we are tasking the judges with; the responsibility is onerous. We have the alternative, a lord justice of appeal, upon which the Minister needs to reflect further. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5

Mode of trial on indictment

Lady Hermon: I beg to move amendment No. 30, in clause 5, page 4, line 31, leave out subsection (4).
I am very concerned about clause 5, which was alluded to in passing by the hon. Member for Foyle and the hon. Member for Montgomeryshire (Lembit Öpik). Having named them, I will check that, but I think that they were concerned that inferences might be drawn from a certificate for a non-jury trial being issued by the DPP. The provision that may allay the fears of the hon. Gentlemen is in clause 5—which I am attacking this afternoon:
“No inference may be drawn by the court from the fact that the certificate has been issued in relation to the trial.”
The wording is interesting, with the emphasis on “the fact”, not on no inference being drawn from the certificate.
Given the Minister’s good track record in the Home Office—which I say in all sincerity—he will be familiar with the provisions of the Criminal Justice Act 2003. He has quoted heavily from the Act to justify having to issue the certificate before arraignment, which I have objected to—but we have moved on. The Minister will be well aware of the provisions on bad character in the 2003 Act. The House wisely decided to change the law so that a defendant’s bad character would be admissible as evidence if certain conditions were satisfied. I will not read out all those conditions, but interested members of the Committee can look at section 101 of the Act. The defendant’s bad character can now be included in evidence in criminal proceedings.
 Not to labour the point too much, but the introduction to Northern Ireland of the provisions about non-jury trials, when there is evidence of real and present danger of jury tampering, has taken an inordinate length of time—since 2003 until 8 January 2007. Could the Minister assure the Committee that the provisions on bad character, which were also legislated for in the 2003 Act, now extend to Northern Ireland? If they do not, why in heaven’s name do they not? We are part of the United Kingdom and if the provisions are good enough in Great Britain they should also be extended to Northern Ireland. There is provision in section 334 of the Act for bad character provisions to be extended to Northern Ireland. My first question to the Minister, therefore, is whether those provisions have been extended and, if so, when was that done. I suspect, with a sinking heart, that they have not. As with the jury tampering provisions, until we highlight the issue the Northern Ireland Office will not see fit to extend the bad character provisions. However, I hope to be surprised, although I will eat my hat if I am.
Secondly, will the Minister explain the impact of subsection (4) on a bad character application? Can the facts that the DPP used to come to the conclusion that a non-jury trial is appropriate, and which lead to the issuing of a certificate for such a trial, go towards a bad character application being made against the defendant? I should like the Minister to address those two issues, and that is my reason for tabling the amendment.

Mark Durkan: I oppose the amendment. As the hon. Member for North Down said, I have expressed concerns about the possibility that inferences might be drawn not only by the court, but more widely, and particularly where there is no indication of which conditions are supposed to have informed the DPP’s issuing of a certificate. If the amendment were successful, there would be no restriction on a court drawing an inference from the issuing of the certificate. We do not, of course, know what effect other evidence in the case might have.
I am particularly concerned because of some of the Secretary of State’s comments on Second Reading. At one point, he obviously misunderstood the Bill, because he said:
“the DPP must put the matter before a judge. If the judge took the view that the action was unreasonable, he would obviously have an argument with the DPP.”—[Official Report, 13 December 2006; Vol. 454, c. 902.]
Obviously, that is completely wrong, as we all know from our reading of the Bill. However, the Secretary of State later said:
“the Bill is clear that the DPP essentially takes the decision and issues the certificate, but he must have good grounds for that. The judge may want to ask him privately about the decision.”—[Official Report, 13 December 2006; Vol. 454, c. 903.]
I would be very concerned about a judge privately asking the DPP about some of the issues and conditions, perhaps being privately told what they were and then being allowed, in conducting the court, to draw an inference from the fact that a certificate had been issued. That breaches even the claims that were made about the Diplock courts, where judges had to warn themselves and meet all sorts of conditions so that nobody could say that what was done was of a lesser quality than what would have been done in a jury court.
 Putting a judge in a non-jury court in circumstances in which he can draw a particular inference from the issuing of a certificate will take the Bill into even more dangerous territory than it is in already. I therefore oppose the amendment.

Paul Goggins: On the question of whether evidence of bad character has been introduced in Northern Ireland, it is in force there, not under the Criminal Justice Act 2003, but under equivalent legislation—the Criminal Justice (Evidence) (Northern Ireland) Order 2004. That is a different route, but I am sure that the hon. Member for North Down will be pleased to know that that is the situation. I hope that that will add to the credibility and strength of the justice system.
The clause is the result of a switch in presumption in relation to the decision as to whether a trial should be by judge alone, rather than by jury. Under the present, Diplock court system, the Attorney-General will not de-schedule a case unless he is satisfied that it is not connected with the emergency in Northern Ireland. In other words, he has to have positive evidence and information that a case is not connected with the emergency in Northern Ireland. There may not be any evidence, but for him to de-schedule it there has to be positive evidence that it is not connected with the emergency.
Under the system that we are proposing, where the presumption is changed, if a certificate has been issued, everybody will know that some positive information must have come before the Director of Public Prosecutions relating to membership of a proscribed organisation, involvement in political or religious hostility or the risk that the administration of justice would be impaired. In other words, the issuing of a certificate will signal that positive information and evidence has been seen by the DPP, leading to a judgment that the case should be tried by judge alone.
One can foresee that there would be more grounds for inference based on the issuing of a certificate than there would be under the de-scheduling of cases in the current system. We seek to question neither the credibility of the justice system in Northern Ireland, nor the senior judges that preside over it: they are used to dealing with cases on the facts and reaching their conclusions in the right way. Given that we are switching the balance in respect of how the test is carried out, it is important that it is switched in favour of a presumption of trial by jury, rather than not. It is important to include this small addition to the clause to make it clear that no inference can be drawn from the fact that a certificate has been issued. It is included to strengthen the credibility of the justice system. Although that is what judges do, it is none the less important to include this provision in the Bill. I hope that that reassures the hon. Lady. We seek to make it explicit that no inference can be drawn from our changing the way in which the test is carried out.

Lady Hermon: First, I am delighted to know that the bad character applications are available in Northern Ireland ahead of the provisions on jury tampering— that has slipped under the radar—and that there will be a non-jury trial where there is evidence of jury tampering. The Minister has kindly addressed that issue.
 Secondly, could the facts leading to the DPP’s conclusion about a certificate being served also go towards a bad character certificate being issued?

Paul Goggins: I apologise to the hon. Lady for not mentioning that in my response. Information could go into both processes, but the important thing to emphasise is that there are two distinct processes: one determines whether a certificate could be issued; the other is a finding of fact in relation to the allegation and the charge that has been made. Although the processes are different, the same information can go to both.

Lady Hermon: That was the most useful intervention from the Minister that I have had all afternoon. I am enormously grateful and he is enormously relieved. Those are helpful assurances. We Committee members are tasked with the job of producing good legislation that deals with all circumstances. My amendment was intended to give the Minister an opportunity to explain what the clause means. I am delighted with his assurances and with the clarification with which he has provided the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Laurence Robertson: I beg to move amendment No. 11, in clause 5, page 4, line 33, leave out subsections (5) and (6).
 I raised this matter previously. The amendment provides that, where the court is not satisfied that a defendant is guilty of an offence that is being tried, but is satisfied that he is guilty of another offence of which a jury could have found him guilty after trial, the court may convict him of the other offence. My concern is that somebody who is tried without jury for a specific offence can be found not guilty of that offence but convicted by that same court, without a jury, of a completely separate offence. Is that correct? If the second offence is a similar one, it could be argued that it would waste a lot of court time to start the trial all over again, but if it is very different, should it not be considered in a different way and separately? I do not wish to drag this out. I have raised the matter before, and the Government came up with all sorts of explanations, but I should like to hear what the Minister has to say about why they group two offences together.

Paul Goggins: I shall try to give a short but careful explanation, because I know that the hon. Gentleman has raised the issue before, and it is important to give the correct answer.
Subsection (5) enables the non-jury court to convict a person of an alternative offence, where the defendant is found not guilty of the offence for which he is being tried. The principle behind that provision is taken from normal criminal procedure. A jury can find a defendant not guilty of an offence with which he has been charged, but guilty of an alternative lesser offence even if that offence has not been put on the indictment. Alternative verdicts are available only where the lesser offence consists only of legal elements contained in that originally charged. That means that where a defendant is charged only with murder, a jury can acquit of murder but instead convict for manslaughter, because murder is similar to manslaughter. It is the same with robbery and theft. There might be a trial for robbery that is not found, but if theft is found the conviction is made.
 It is not possible to move from murder to theft or from murder to robbery. The offences have to be of like nature for a conviction on the lesser offence to be found. The lesser offence arises from the same facts, and therefore the circumstances that have led to the decision for non-jury trial in that case will apply. It clearly makes sense for the tribunal that has already heard all the witnesses and come to a conclusion on the facts to enter the appropriate verdict rather than to start from scratch. It is in the interests of justice that we do not start all over again. That is important—the criminal justice system does not allow us to start all over again on the same charges. Under the changes to the double jeopardy rule—this takes us back again to the Criminal Justice Act 2003—it is possible to retry for the same offence only where the matters are very serious and there is new and compelling evidence.
If we do not give the judge here the same powers that a jury would have to convict on a lesser offence, somebody who is not convicted of the most serious offence but who has none the less committed an offence, could walk scot free from the court. That would indeed be something that any member of the Committee would regret.

Laurence Robertson: I am grateful to the Minister for his explanation. Is he satisfied that, as the Bill is drafted, the two offences—murder and manslaughter in the example that he gave—would be linked?

Paul Goggins: I am satisfied that they would. The Bill is clear enough, and that is understood in criminal justice legislation and procedure generally. There has to be that close association between the two offences for there to be a finding of guilt on the lesser offence. That relationship has to exist; it is not possible for the court to switch dramatically from one offence to another.
Subsection (6) contains one of the main safeguards applicable to non-jury trial. Where the court convicts a defendant, it must give a judgment stating the reasons for the conviction at—or as soon as is reasonably practicable after—the time of the conviction. That helps to ensure the European convention on human rights compatibility of the system. It also provides transparency and helps to increase confidence that non-jury trials are fair. That is the point that the hon. Member for East Antrim made when we discussed clause 1. The fact that a trial is a non-jury trial does not mean that it is an unfair trial. The standard of justice has been very high indeed, and part of the underpinning of that is to ensure that the statement is made clearly at the end of the trial or as soon as possible afterwards. It is a safeguard to ensure that, in what are extraordinary, unusual circumstances, justice is done and—[Interruption.] My hon. Friend the Member for Foyle spots when I am getting to the end of my last sentence. Again, I will happily give way.

Mark Durkan: Does the Minister agree—well, I do not expect him to agree with the premise of the point,  so I will rephrase it. Does the Minister accept that the problems with the credibility of a situation where certificates are issued without the information being revealed or indicated, and people do not know why the certificates were issued, would be compounded if the court that was held on the basis of a certificate could convict someone and, as a result of the measure, not be under an obligation to produce a statement of judgment in a timely fashion that said why they were convicted? Then, people would say, “We weren’t told why we were going to a non-jury court, and now we’ve been convicted and we’re not even told why we have been convicted.”

Paul Goggins: The issue is important. My hon. Friend has questioned the transparency of the system that we propose, and I have defended it and explained the Government’s position. It is important that at last we have something on which we can agree, which is the importance of the fact that the court makes absolutely clear the reasons for the finding of guilt and provides an explanation of that. That ensures that we comply with human rights legislation and, as important, it offers credibility to the system that we are putting in place, so that justice is done and is seen to be done, even if some of the decisions are not particularly transparent to the public eye. I hope that that explanation helps the hon. Member for Tewkesbury. I hope that I have calmed some of his fears and that he will consider withdrawing the amendment.

Laurence Robertson: I thank the Minister for his patient explanation. As the Bill is written, it does not give a guarantee that it is impossible to move from one offence to a different offence. I assume that the Minister is saying that the legislation that prevents that from happening covers Northern Ireland. If it does, I suppose that the question is why the subsection was put in the Bill if what has been described can happen anyway. I am happy to take an intervention.

Paul Goggins: I sense that the hon. Gentleman—I hope that I am correct—does not necessarily wish to press the amendment to a Division but does want a bit more background information, which I am happy to provide to him and other members of the Committee. I can assure him that what I have said is true, but perhaps we need to reference that a little more clearly for the hon. Member for Tewkesbury. That might satisfy him on the point.

Laurence Robertson: I am grateful to the Minister. Given that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Clause 7

Limitation on challenge of issue of certificate

Nicholas Winterton: The question is that clause 7 stand part of the Bill—

Lembit Öpik: On a point of order, Sir Nicholas. I know that my timing is marginal, but I should like to speak to the clause. I seek your judgment in that case, because I am merely an honest broker doing my best.

Nicholas Winterton: I am prepared to allow the hon. Gentleman to speak on clause stand part on clause 7.

Question proposed, That the clause stand part of the Bill.

Lembit Öpik: I apologise, Sir Nicholas. I have full faith in the ability of the Committee, including my hon. Friend the Member for Argyll and Bute, to cover the other matters, but I do wish to make a point about clause 7.
Once again, it is not necessary to repeat everything that was said on Second Reading, but there are significant issues about the clause. In essence, clause 7 is objectionable because it just does not take account of the observations of the Joint Committee on Human Rights on this issue. My party did not oppose the Bill on Second Reading, but I did say in the debate at that time that if clause 7 were not removed or massively altered, we would not support the Bill on Third Reading.
 The key reason for opposing the clause is one that has already been indirectly alluded to by the hon. Member for Foyle. Not only is there no provision in the Bill for an appeal against a decision of trial without jury, but appeal is expressly prohibited. We believe that that is completely wrong. Furthermore—in my judgment at least—it cannot be right that the Director of Public Prosecutions can issue a certificate for a trial to be conducted without a jury, without the defendant even having any means to make representations to the DPP, or having any means of appeal.
A similar proposal was made in the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2004. What was then clause 11 of that Bill would have inserted new section 108A in the Nationality, Asylum and Immigration Act 2002. That provision would have cut off all appeals and judicial review by the ordinary courts on immigration matters. It would also have excluded habeas corpus applications in immigration cases. At the time, the Joint Committee on Human Rights issued a damning report on the provision. It stated that the Committee regarded the proposed restriction as
“inherently objectionable as an attack on an important element of the scheme for protecting Convention rights in the United Kingdom.”
That quotation comes from paragraph 1.28 of the Committee’s third report, dated 19 January 2004.
Despite attempts by the Government to assuage the Committee’s concerns, a second report stated that
“it could be strongly argued that the ouster of judicial review of tribunal decisions contemplated by clause 11 has not been justified by any argument advanced by the Government. There is a real danger that this would violate the rule of law in breach of international law, the Human Rights Act 1998 and the fundamental principles of our common law.”
That was in paragraph 71 of the Committee’s fifth report, dated 2 February 2004. As far as I am concerned, the provisions before us are the same—albeit in a different piece of legislation—and are equally objectionable.

Nick Palmer: Does not the hon. Gentleman agree that the issues here are different? In the present context, we are talking about life and death matters, because if the detailed reasons for the director’s decision were to be effectively challenged in court by judicial review, it would be necessary to go into much more detail in public than is foreseen, for the reasons we have discussed. I agree with the hon. Gentleman that in an immigration case there is a case to be made for doing that. In the present case it seems to me that there is potentially a real risk.

Lembit Öpik: I have no doubt that the hon. Gentleman believes that there is a difference, but I do not share his view. The principle is the same. Although it may be argued that immigration cases have a different magnitude, let us recognise that those cases too can be life or death matters that can divide or unite families. For me, the important point is that the proposal would set a precedent that was rejected in earlier legislation: if it were allowed to pass, it would set the precedent of acceptance of the opposing view in a piece of British legislation. It would be inconsistent for the Liberal Democrats—or anyone concerned about the human rights consequences of the earlier legislation—to support such a provision now.
 Clause 7(3) actually says:
“Section 7(1) of the Human Rights Act 1998 (c. 42) (claim that public authority has infringed Convention right) is subject to subsections (1) and (2).”
So if my understanding is correct, the provision says that the Human Rights Act is subjugated by clauses 7(1) and 7(2). In other words, the clause itself sets out a hierarchy of priorities in terms of rights, and indicates that it is required in order to subject the Human Rights Act to a process of relegation—in order not to fall foul of that statute.
 That is our case; that is why we are opposed to clause 7. The only way for the Minister to convince us otherwise would be to explain why it is not similar to the precedent defeated previously. He will have to say why the observations of the Joint Committee on Human Rights on that previous legislation, which was very similar, can be disregarded on this occasion. I doubt that he can.

Mark Durkan: The clause presents one of the most draconian aspects of the Bill. Unlike the provisions of the Criminal Justice Act 2003, under the Bill, the DPP does not have to apply in court to have a case tried without a jury. However, the clause goes much further: it makes it impossible to question or to challenge that certificate by way of judicial review. That runs totally contrary to the Government’s own consultation paper, which stated that
“As with other administrative decisions, the DPP’s decision will be judicially reviewable.”
It also runs contrary to the recommendations of Lord Carlile, who clearly believed that the decision on certification should be judicially reviewable.
I say in passing that the fact that the Government can be so dismissive of such a significant view is one reason why we have no faith in what the Government offered last week about MI5—that we should be assured that Lord Carlile will be reviewing it annually.
The Government have already told us that the provision merely reproduces the result of the Shuker case. In that case, it was decided that the decision of the Attorney-General to deschedule was
“a procedure on which the courts should be reluctant to intrude”.
If so, and if the courts had already established for themselves that it was a procedure on which they should be reluctant to intrude, why is it now necessary to go further? Why is it necessary to ensure that the courts cannot even get a look in through the door or the window, never mind intrude? The Government are exaggerating and extending the implications of the Shuker case through the clause.
I understand that the Government also argue that it will be possible for the courts to step in, at least if there is bad faith on the part of the DPP. However, subsection (1) does not permit that; it rules out judicial review—full stop. It is true that subsection (2) provides that the court is prevented from judicially reviewing where a decision is taken without bad faith, but that is not to say that a court will be permitted to do so if there is bad faith. After all, the Minister’s argument is that the court should not intrude.
Shockingly, the Government back the provision with a derogation from the Human Rights Act 1998 under subsection (3), and therefore from the European convention on human rights—that is to say, a derogation from the basic standards of decency that are meant to have applied throughout Europe for more than 50 years. That is an extraordinary thing for any Government to do. It is particularly extraordinary for the Government to want to do it in Northern Ireland, especially at a time when the security situation is improving. They are constantly telling us how much things have changed and saying that people should not have any worries or hang-ups about the situation, yet they still want to introduce this extremely draconian clause. I oppose its standing part.

Laurence Robertson: If the amendment that we debated earlier had been accepted—that the Lord Chief Justice for Northern Ireland should determine such certificates—I probably would not have wanted to speak. We have already heard that the Bill states at the very front that
“Mr. Secretary Hain has made the following statement under section 19(1)(a) of the Human Rights Act 1998: In my view the provisions of the Justice and Security (Northern Ireland) Bill are compatible with the Convention rights.”
They are not. If it were otherwise, there would be no need for subsection (3). It is ridiculous, and, as the hon. Member for Foyle said, there can be no judicial review. I am not a lawyer, although I studied law for a while, but I am not aware of any other area of law in which judicial review is impossible. Lawyers on the Committee may be able to advise me better, but it seems to me that judicial review should be available for any decisions that are not made in the correct manner. 
How do we know that that will not be the case with the Bill? Decisions could be made in an incorrect manner and a judicial review has to be available. That is a human right and a basic legal right. I have no intention of repeating the remarks made by other hon. Members, but I am concerned.

Lady Hermon: As the Minister and other hon. Members who participated in the debate on Second Reading will know, I am extremely uncomfortable with all of clause 7, and I shall certainly support others in voting against it. I might not have supported them to date in voting against other aspects of the Bill, but I have no hesitation in this instance.
Explanatory notes are very helpful, and I know that civil servants spend an inordinate amount of time scrutinising legislation and judicial cases to compile them for the benefit of readers of the legislation. Although they are not part of the legislation, they are a helpful background note. In this instance, the explanatory notes laboured—as did the Secretary of State on Second Reading—a small, narrow point taken from the case alluded to by the hon. Member for Foyle, the Shuker case. That was a decision, which the Minister mentioned, made by the Lord Chief Justice of Northern Ireland and Lord Justice Campbell about whether the Attorney-General should have descheduled an offence and whether that decision was reviewable.
 After some discussion and a lot of thought two of our most senior judges in Northern Ireland, both of whom are extremely experienced, came to the conclusion, cited in the explanatory notes and by the Secretary of State on Second Reading, that the descheduling of offences
“is not a process which is suitable for the full panoply of judicial review superintendence. In particular, we do not consider that the decision is amenable to review on the basis that it failed to comply with the requirements of procedural fairness.”
However, it would have been accurate and would have done justice to the judgment of those two senior judges in Northern Ireland had the explanatory notes and Secretary of State been so kind as to go on to explain to the House on Second Reading that the judgment continues in paragraph 27:
“It must be made clear that while we have concluded that judicial review is not available to challenge the decision of the Attorney in the present cases, we do not consider that this will be excluded in every circumstance.”
It goes on to say:
“Depending on the circumstances of other cases that may arise, further grounds of judicial review challenge may be deemed appropriate but we do not consider that it would be helpful, or even possible, to predict what those grounds might be.”
It is not fair and accurate to construe the Shuker case as a restriction, as clause 7 does, to the grounds of “dishonesty or bad faith”. That is not what the judges were saying. They were saying that they would not set out an exhaustive list of the grounds for judicial review. On the narrow ground of the Shuker case, they decided not to open the case and review it on the grounds of “procedural fairness”. It beggars belief that under clause 7(2) a court would be prevented
“from entertaining proceedings to determine whether a decision or purported decision of the Director (without dishonesty or bad faith)”—
those are the two allowable grounds—
“was a nullity by reason of lack of jurisdiction or error of law.”
So, for goodness’ sake, the DPP may make a decision that is wrong in law and wrong in fact because he is unwell—for example, medically unwell—and a court would not be able to review such a decision. We are talking about someone’s civil liberties in the context of a Government who made the European convention on human rights part and parcel of our domestic law, and to which I say hallelujah. That was the best decision they ever made. I am amazed and offended that they are now going to say, “Well, we might have done that. It was a good decision at the time, but when it suits us, we will, through clause 7(3), make the Human Rights Act 1998 subject to subsections (1) and (2).” That was done on the basis of a distorted interpretation of one case, the Shuker case, where the judges were much fairer than the explanatory notes or the Secretary of State. I am completely opposed to clause 7 as drafted and, honestly, if I were the Minister I would not even attempt to justify it.

Nick Palmer: I take the point made by my hon. Friend the Member for Foyle that clause 7(2) appears to bear out what is stated in the explanatory notes: that a challenge is still possible where dishonesty or bad grace are suspected. However, subsection (1) does not appear to envisage that possibility. Will the Minister clarify whether, in the eyes of the law, the proposal as it stands allows challenge on the grounds of dishonesty or bad grace? Alternatively, will he introduce an amendment to make that clear?

Paul Goggins: Although it is fairly evident from some comments that it may be a tall order, I will do my best to persuade the Committee that we are placing Shuker on a statutory footing, as mentioned by the hon. Member for North Down. The Shuker judgment makes it clear that the limitation we provide is not incompatible with the European convention on human rights. The reason why the Bill is compatible with the ECHR is because it guarantees a fair trial. The convention does not guarantee trial by jury; it guarantees a fair trial. As has been made clear by all hon. Members on Second Reading and today, whatever questions people may have about the Diplock system, it delivers fair justice and has done so in the teeth of some difficult situations. That standard of justice will continue and I am happy to stand beside the commitment my right hon. Friend the Secretary of State made about the Bill being compliant with the ECHR, because it guarantees a fair trial.

Laurence Robertson: We are disputing the decision about the mode of the trial, not the trial itself. It is a fundamental right that if a legal decision has been reached through the wrong channel, there is the option of a judicial review. That is a fundamental basic right. I do not know why clause 7(3) is in the Bill at all when the whole Bill is supposed to be compatible with the European convention on human rights. If the Bill was compatible, there would be no need for clause 7(3).

Paul Goggins: We are simply dealing with the decision on mode of trial; this is not about a fair trial. The trial would be fair whether it was by a judge alone or a jury. Yes, we are limiting the grounds on which a challenge can be made, and that is for the good reasons we rehearsed earlier. I shall repeat some of those.
There was difference of opinion across the Committee, but the overwhelming judgment was that it is still necessary to have trial by judge alone in Northern Ireland. I believe that that view has held sway, as demonstrated in the votes taken so far, because we have chosen the administrative route for decisions about the mode of trial rather than the judicial route. We have done that because if evidence is given in a judicial process on whether a person belongs to a proscribed organisation, with which they associate with, or on other aspects of the test, it has to be shared with the defendant, and with that comes many risks, such as further intimidation.
The greatest risk of all is that such cases are tried not by judge alone but by jury. Many risks come with that. We have decided that trial by judge alone is justified in certain circumstances and that the administrative route is the right one. Once we have taken that decision, we cannot open that process to a system of judicial appeal because that would put at risk all that we have sought to protect with our earlier decisions. All that information would have to be shared in a judicial process, and that would bring into question the system of having trials by judge alone, in limited circumstances, which we seek to introduce. There is no inconsistency. If we choose the administrative route of having trials by judge alone, we cannot have a judicial process questioning that, because it would undermine the whole process.

Lembit Öpik: The Minister is not answering the question asked by the hon. Member for Tewkesbury. If the legislation is compatible with the Human Rights Act, why does the clause have to suspend one of the Act’s measures and make it subject to subsections (1) and (2)? I simply do not understand why the Minister thinks that it is compatible if the Bill is to suspend a part of that Act.

Paul Goggins: My whole point is that the limitation in subsection (3) does not run counter to the overall assurance that the Bill is compliant with the European convention on human rights; it is. The hon. Member for Tewkesbury questioned the commitment of my right hon. Friend the Secretary of State for Northern Ireland on that basis.
 We seek to limit the grounds on which the DPP’s decision may be challenged. My hon. Friend the Member for Foyle is right to say that the DPP’s decision to issue a certificate can be challenged on the grounds of bad faith and dishonesty. The grounds on which such a decision may be challenged are necessarily limited for the reasons that I have given. We have chosen the administrative route to protect sources and important information. If there is then a judicial review process, all that information will be opened up to wider scrutiny and the defence. That would undermine the process that we are trying to put in place.

Laurence Robertson: Will the Minister tell us which court could consider an appeal on the grounds of dishonesty or bad faith?
 Paul Goggins rose—[Interruption.]

Nicholas Winterton: Perhaps the Minister wants to take another intervention.

Mark Durkan: Thank you, Sir Nicholas. I put it to the Minister, as have other hon. Members, that something cannot comply with the Human Rights Act or the convention if it provides for a derogation from them. He still has not addressed the point about the Government’s clear and unambiguous statement in their consultation:
“As with other administrative decisions, the DPP’s decision will be judicially reviewable.”
As well as answering the question about which court will consider judicial review cases brought on the grounds of dishonesty or bad faith, will the Minister tell us how someone will be able to mount such a case if the DPP’s certificate is to contain no indication of which conditions are supposed to have informed its issue? How can one prove dishonesty if there is no information and no case stated?

Paul Goggins: The High Court is, of course, the court to which reference could be made, albeit on the limited grounds of bad faith and dishonesty. I do not deny for a minute that they are limited grounds. They are necessary to provide some assurance for the most extreme circumstances, but I set my face clearly against a judicial process of challenge given that we have chosen an administrative route to protect justice. I accept that some Committee members disagree with that argument, but it is coherent and is consistent with all that has gone before.

Peter Bone: The Minister cannot have it both ways. Subsection 7(1) makes it clear there can be no challenge, irrespective of what it says later. There can be no consideration and no challenge. The Minister is right to say that an administrative route is what he prefers, but he has to accept that it infringes the convention.

Paul Goggins: I do not accept that. What the European convention on human rights guarantees, and what we are signed up to, is a fair trial, and that will happen. Even if the decision to give a certificate is one that the defendant wishes to challenge, and even if he is not able to challenge in the way that some hon. Members would like, he still gets a fair trial.

Sammy Wilson: My concern is not that the grounds have been limited for challenging these decisions. I have made it quite clear that I believe there is still opportunity for a fair trial. My concern is whether, if the challenge is on the basis of honesty, that opens the door for information regarding the background of the individual or the associations of the individual and how that information has come to the DPP to be revealed to those who challenge. We then have the difficulties that we had before with national security and the possibility of the identity of agents being revealed.

Paul Goggins: I can reassure the hon. Gentleman that that would not be the case because the grounds for the appeal relate to the character and way of operating of the Director of Public Prosecutions rather than the background of the defendant. I can therefore give him the assurance that he seeks. In adopting the administrative route we seek to protect information sources. Those small number of cases where it is justified to make a certificate can be very sensitive indeed and it is absolutely essential to keep that out of the public domain and away from the defendant in order to make sure that we actually have a fair trial.

Laurence Robertson: I return to the opportunity to appeal against the decision on the basis of dishonesty or bad faith. I am not convinced that this would be available under the clause as it is written. As my hon. Friend the Member for Wellingborough says, clause 7(1) expressly rules it out. Therefore, will the Minister try to re-word it so that it makes it clear that in certain circumstances—he can specify them if he wishes—it is possible to appeal. I do not believe that the present wording of the clause allows that.

Paul Goggins: It is important that subsections (1) and (2) are read together. They make it clear that we are not excluding judicial review altogether. There are grounds to make the challenge. The grounds are, however, limited. They are limited in a way that is consistent with the Shuker judgment, which we are now seeking to put on a statutory basis. The grounds are very limited indeed but they are compliant with the ECHR. The Shuker judgment makes that absolutely clear.
I will, of course, reflect on the point the hon. Gentleman has made, but I encourage him to read the whole of the clause to see that there are limited grounds for appeal. They are limited grounds and necessarily so.

Lembit Öpik: I do not want the Minister to turn this into a dialogue with each individual so I will try not to intervene on him again. I do, however, have to back up what the hon. Member for Tewkesbury says: there can be no misinterpretation of clause 7(1). It is utterly clear and unconditional. To suggest that subsection (2) provides some latitude to challenge these proceedings would assume that by saying “without dishonesty or bad faith” is somehow more important than the unconditional statement in subsection (1).
Subsection (3) would indicate that the Government are aware that this does not really comply with human rights legislation. I do not wish to embark on a dialogue or contention with the Minister, but I would like to hear him say that he will take this clause away and re-think it and perhaps come back on Report with something that is compliant and does not need subsection (3).

Paul Goggins: I made it clear at the start that I will look carefully at all the contributions that have been made. I do not, however, have any doubts in relation to clause 7(1).

Laurence Robertson: It is not very clear.

Paul Goggins: If we can make it clearer we will do so. However, undertaking to reconsider it does not mean that we are shifting our ground; absolutely not. The proposal makes it clear that the court cannot question the decision of the DPP to make a certificate having considered both limbs of the statutory test. It is that decision, and the grounds on which the DPP made it, that the court cannot challenge. That is explicit; it is understood.
The decision can be challenged only on the grounds of dishonesty and bad faith in relation to the character and the conduct of the DPP, not his judgment in relation to the statutory test. It is entirely right that no court can challenge the decision. We are not having a full-blown judicial process to consider an appeal against that decision. We make that clear; it is our choice. I am open about that; we are taking the administrative route, which subsection (1) makes absolutely clear.

Mark Durkan: Again, I remind the Minister that when he talks about taking the administrative route, as with other administrative decisions the Government’s own paper said that the DPP’s decision will be judicially reviewable. That is a very significant exception.
The Minister also referred to subsection (2), but the words
“without dishonesty or bad faith”
are in parenthesis. The question is whether a purported decision
“was a nullity by reason of lack of jurisdiction or an error of law.”
The proposal is narrower when one considers the full subsection.
Does the Minister accept that what he is saying clearly now means that what the Secretary of State said on Second Reading in response to an intervention from the hon. Member for Cambridge (David Howarth) was completely wrong? The Secretary of State said that
“the DPP must put the matter before a judge. If the judge took the view that the action was unreasonable, he would obviously have an argument with the DPP.”—[Official Report, 13 December 2006; Vol. 454, c. 902.]
The Secretary of State gave the House one version and the Minister is giving this Committee a very different version.

Paul Goggins: There are two distinct processes, one is the issuing of the certificate, which is based on a decision made by the DPP in the light of any information he has set against the statutory test. The certificate is issued, there is arraignment and then there is a trial by judge alone. It is up to that judge how he or she conducts that trial. They are two separate processes and I am happy to have the opportunity once again to explain that to my hon. Friend.
My hon. Friend referred to the consultation, which was clear: there would be grounds for a challenge to be made and we have provided for that, on very limited grounds, I agree. He may not agree with our position, but there is the ability to challenge on the grounds of bad faith or dishonesty. However, subsections (1) and (2) make it explicit that there is no provision to challenge the decision of the DPP in relation to the judgment he has made on the facts that he has, set against the statutory test. We are clear that that is coherent and absolutely consistent with our stance in relation to the statutory test on non-jury trials.
The hon. Member for Montgomeryshire said that there was perhaps a limit to our discourse, and we are getting close to it, but I am happy to give way.

Mark Durkan: I ask the Minister to respond to my earlier point: how could someone possibly challenge on the grounds of dishonesty or bad faith a decision that says nothing, and gives no information, no reason, and no suggestion of anything? How does one challenge that decision on the grounds of dishonesty or bad faith?

Paul Goggins: That will relate to the conduct of the DPP in the decision he has made, not to the facts on which he has made the judgment. I acknowledge that the grounds on which the challenge can be made are very limited.

Mark Durkan: It is based on intelligence.

Paul Goggins: My hon. Friend is making it clear that he continues to disagree with me. I respect his position on this and on many other issues, I just happen to disagree with him. The levels of agreement and disagreement in the Committee on this issue are evident.
May I make one final point, which has not been made so far? It is open to the defendant, as is the case under the Diplock system, to make representations to the prosecution about whether the statutory test applies. It is possible to make representations to the DPP. The defendant does not have to be a completely passive person in this process. Again, I reiterate, we believe that an administrative route and a statutory test with limited grounds of appeal is the best way in the limited number of circumstances where trial by judge alone is still needed in Northern Ireland.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 13, Noes 6.

Question accordingly agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8 ordered to stand part of the Bill.

Schedule 1 agreed to.
Further consideration adjourned.—[Mr. Michael Foster.]

Adjourned accordingly at twenty-eight minutes past Seven o’clock till Thursday 18 January at Nine o’clock.